Recruitment and Placement (G3)

7/30/2019 Recruitment and Placement (G3)

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Illegal Recruitment: A Global and Local Issue

Illegal recruitment is one of the most pervasive forms of fraud today.

The Philippine Overseas Employment Administration reveals that in 2010, the

government handled 1,648 cases of illegal recruitment but it only acted and

resolved 283, translated to 17.2% disposition rate, 1, 365 were pending at

the end of the year. The increasing incidence of illegal recruitment is one of

the biggest problem victimizing Filipino workers, in the country or abroad.

Maria Otero, the Under Secretary for Civilian Security, Democracy, and

Human Rights, emphasized that trafficking and illegal recruitment is one of

the big problems of local and international communities as well. It is such a

pressing issue because it deals with one of our most fundamental values.

That is the basic freedom and dignity of every individual. Furthermore, the

solution that she proposes is helping countries and governments create justsocieties, societies that are grounded in democratic principles that guarantee

respect for human rights and that apply the rule of law. She explained,

whether were helping strengthen judicial systems or were denouncing

human rights abuses or helping build strong law enforcement capacities or

combating trafficking and illegal recruitment in persons, were aiming to help

countries protect the individual citizens in their countries.

However, dealing with the issue is not an easy feat. Alcestis Abrera, acolumnist, commented that the question of "balance" in terms ofrecruitment, regulation and protection of workers vis-a-vis market

development and promotion has always been critical. This is because theconcern over abusive recruitment practices and sub-standard contractterms and conditions often conflicts with the government's desire torealize tangible economic benefits: employment and foreign exchange.(Alcestis Abrera, Illegal recruitment: The Philippine Experience)

But then it cannot be said that the government has been sleeping on its duty

to protect the Filipino workers from exploitative practices. As early as 1975,

the campaign against illegal recruitment received its biggest impetus

when President Ferdinand Marcos directed the Ministers

ofLabor,Justice, National Defense, Foreign Affairs, Public Information

andTourism to launch a massive and coordinated effort to eradicated themenace to the public. LOI 324, which embodies this directive, is the basis for

the creation of the National Council on Illegal Recruitment (NCIR) designed as

a superbody in charge of coordinating the campaign to protect job-seekers

against being victimized by licensed and unlicensed recruiters. From 1975

and to the present, the government has been harnessing exhaustive

measures and control machineries.
http://en.wikipilipinas.org/index.php?title=Ferdinand_Marcoshttp://en.wikipilipinas.org/index.php?title=Department_of_Labor_and_Employmenthttp://en.wikipilipinas.org/index.php?title=Department_of_Justicehttp://en.wikipilipinas.org/index.php?title=Department_of_National_Defensehttp://en.wikipilipinas.org/index.php?title=Department_of_Foreign_Affairshttp://en.wikipilipinas.org/index.php?title=Department_of_Tourismhttp://en.wikipilipinas.org/index.php?title=Ferdinand_Marcoshttp://en.wikipilipinas.org/index.php?title=Department_of_Labor_and_Employmenthttp://en.wikipilipinas.org/index.php?title=Department_of_Justicehttp://en.wikipilipinas.org/index.php?title=Department_of_National_Defensehttp://en.wikipilipinas.org/index.php?title=Department_of_Foreign_Affairshttp://en.wikipilipinas.org/index.php?title=Department_of_Tourism


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At the present, the country maintained its Tier 2 status in the overall

assessment for the country in the 2012 edition of the Trafficking in Persons

(TIP) report, released by the US State Department on June 19, 2012. Such

rank indicates compliance of country with international standards and

agreements in the fight against modern-day slavery which involves human

trafficking and illegal recruitment.

Tier 2 countries are officially defined as "countries whose governments do not

fully comply with the TVPAs (Trafficking Victims Protection Act) minimum

standards, but are making significant efforts to bring themselves into

compliance with those standards."

Though the country failed to attain Tier 3 rank, the report cited the

Philippines' efforts in curbing this major problem. For instance, the country's

budget for the Inter-Agency Council Against Trafficking (IACAT) was raised to

an equivalent of $1.5 million last year, up from $230,000 the year before.

The report also said the Philippines continues to prosecute and convict

trafficking offenders, as well as initiate new programs to help their victims.

However, one gray spot for the government's efforts is the failure to make

progress on efforts to prosecute illegal recruiters, as well as issues in victim

identification and protection. As such the TIP recommended that the country

boost its efforts in anti-trafficking programs.

Among the recommendations are the continued and intensified efforts to try

trafficking cases here and abroad;

1. increase funding and training for government agencies dealing with the

problem

2. address the backlog of cases

3. respond to new cases immediately and rigorously

4. pursuing criminal investigation and prosecution of traffickers.

What is Recruitment and Placement?

Article 13(b) of the Code defines recruitment and placement as any act of

canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring

workers and includes referral, contract services, promising or advertising for

employment, locally or abroad, whether for profit or not. Provided, that any

person or entity which in any manner, offers or promises for a free


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employment to two or more persons shall be deemed engaged in recruitment

and placement. (People vs Sanoron, 267 SCRA 278)

Is the number of persons dealt with an essentialingredient of the act of recruitment and placement ofworkers?

The Court ruled that the number of persons is not an essential ingredient of

the act of recruitment and placement of workers. The presumption is that

the individual or entity is engaged in recruitment and placement whenever

he or she is dealing with two or more persons to whom, in consideration of a

fee, an offer or promise of employment is made.

Furthermore, the number of persons dealt with is not an essential ingredient

of the act of recruitment and placement of workers. Any of the actsmentioned in the basic rule in Article 13 (b) will constitute recruitment and

placement even if only one prospective worker is involved. The provision

merely lays down a rule of evidence that were a fee is collected in

consideration of a promise or offer of employment to two or more prospective

workers, the individual or entity dealing with them shall be deemed to be

engaged in the act of recruitment and placement. The words shall be

deemed create that presumption. (People vs Panis, 142 SCRA 664)

Illegal RecruitmentIllegal Recruitment is defined under Article 38(a) of the Labor Code, as

amended, as any recruitment activities, including the prohibited practices

enumerated under Article 34 of this Code, to be undertaken by non-licensees

or non0holders of authority. (People vs Senoron, 267 SCRA 278)

Private fee-charging employment agency means any person orentity engaged in recruitment and placement of workers for a fee

which is charged, directly or indirectly, from the workers or employers

or both. (Article 13c of the Labor Code)

License means a document issued by the Department of Laborauthorizing a person or entity to operate a private employment

agency. (Article 13d of the Labor Code)

Private recruitment entity means any person or associationengaged in the recruitment and placement of workers, locally or


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overseas, without charging, directly or indirectly, any fee from the

workers or employers. (Article 13e of the Labor Code)

Authority means a document issued by the Department of Laborauthorizing a person or association to engage in recruitment and

placement activities as a private recruitment entity. (Article 13f ofthe Labor Code)

RA No. 8042 or the Migrant Workers and Overseas Filipinos Act of 1995, has

consolidated the various provisions of the Labor Code pertaining to illegal

recruitment as applied to migrant workers. The following is its definition of

illegal recruitment as amended by RA No. 10022, section 5:

Section 6. DefinitionFor purposes of this Act, illegalrecruitment shall mean any act of canvassing, enlisting,

contracting, transporting, utilizing, hiring or procuring workersand includes referring, contract services, promising or advertisingfor employment abroad, whether for profit or not, whenundertaken by a non-licensee or non-holder of authoritycontemplated under Article 13(b) of PD No. 442 or the LaborCode of the Philippines. Provided, that any such non-licensee ornon0holder who, in a any manner, persons shall be deemed soengaged. It shall likewise include the following acts, whethercommitted by any person whether a non-licensee, non-holder,licensee or holder or authority.

a. To charge or accept directly or indirectly any amount greater

than that specified in the schedule of allowable fees prescribed

by the Secretary of Labor and Employment, or to make a worker

pay or acknowledge any amount greater than that actually

received by him as a loan or advance;

b. To furnish or publish any false notice or information ordocument in relation to recruitment or employment;

c. To give any false notice, testimony, information or documentor commit any act of misrepresentation for the purpose of

securing a license or authority under the Labor Code, or for thepurpose of documenting hired workers with the POEA, whichinclude the act of reprocessing workers through a job order thatpertains to nonexistent work, work different from the actualoverseas work, or work with a different employer whetherregistered or not with the POEA;


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d. To include or attempt to induce a worker already employed toquit his employment in order to offer him another unless thetransfer is designed to liberate a worker from oppressive termsand conditions of employment;

e. To influence or attempt to influence any person or entity not to

employ any worker who has not applied for employment throughhis agency or who has formed, joined or supported, or hascontacted or is supported by any union or workers' organization;

f. To engage in the recruitment or placement of workers in jobsharmful to public health or morality or to the dignity of theRepublic of the Philippines;

g. To fail to submit reports on the status of employment,placement vacancies, remittance of foreign exchange earnings,separation from jobs, departures and such other matters orinformation as may be required by the Secretary of Labor andEmployment;

h. To substitute or alter to the prejudice of the worker,employment contracts approved and verified by the Departmentof Labor and Employment from the time of actual signing thereofby the parties up to and including the period of the expiration ofthe same without the approval of the Department of Labor andEmployment;

i. For an officer or agent of a recruitment or placement agency tobecome an officer or member of the Board of any corporation

engaged in travel agency or to be engaged directly or indirectlyin the management of travel agency;

j. To withhold or deny travel documents from applicant workersbefore departure for monetary or financial considerations, or forany other reasons, other than those authorized under the LaborCode and its implementing rules and regulations;

k. Failure to actually deploy a contracted worker without validreason as determined by the Department of Labor andEmployment;

l. Failure to reimburse expenses incurred by the worker inconnection with his documentation and processing for purposesof deployment, in cases where the deployment does not actuallytake place without the worker's fault. Illegal recruitment whencommitted by a syndicate or in large scale shall be considered anoffense involving economic sabotage; and


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m. To allow a non-Filipino citizen to head or manage a licensedrecruitment/manning agency.

What are the essential elements of illegalrecruitment?

Illegal recruitment is committed when two elements concur:

a) that the offender has no valid license or authority required by law to

enable on to lawfully engage in recruitment and placement of workers

b) that the offender undertakes either any activity within the meaning of

recruitment and placement defined under Article 13b, or any prohibited

practice enumerated under Article 34 of the Labor Code or the Migrant

Workers Act for migrant workers and overseas Filipinos.

ARTICLE 34. Prohibited practices. - It shall be unlawfulfor any individual, entity, licensee, or holder of authority:

(a) To charge or accept, directly or indirectly, any amount

greater than that specified in the schedule of allowable fees

prescribed by the Secretary of Labor, or to make a worker pay

any amount greater than that actually received by him as a loan

or advance;

(b) To furnish or publish any false notice or information or

document in relation to recruitment or employment;

(c) To give any false notice, testimony, information or document

or commit any act of misrepresentation for the purpose of

securing a license or authority under this Code already

employed to quit his employment in order to offer him to

another unless the transfer is designed to liberate the worker

from oppressive terms and conditions of employment;

(e) To influence or to attempt to influence any person or entity

not to employ any worker who has not applied for employment

through his agency;

(f) To engage in the recruitment or placement of workers in jobs

harmful to public health or morality or to the dignity of the

Republic of the Philippines;

(g) To obstruct or attempt to obstruct inspection by the

Secretary of Labor or by his duly authorized representatives;


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(h) To fail to file reports on the status of employment,

placement vacancies, remittance of foreign exchange earnings,

separation from jobs, departures and such other matters or

information as may be required by the Secretary of Labor;

(i) To substitute or alter employment contracts approved andverified by the Department of Labor from the time of actual

signing thereof by the parties up to and including the periods of

expiration of the same without the approval of the Secretary of

Labor;

(j) To become an officer or member of the Board of any

corporation engaged in travel agency or to be engaged directly

or indirectly in the management of a travel agency; and

(k) To withhold or deny travel documents from applicant

workers before departure for monetary or financial

considerations other than those authorized under this Code and

its implementing rules and regulations.

Kinds of Illegal Recruitment

1. Simple illegal recruitment committed by a licensee or holder of

authority;

2. Illegal recruitment committed by a person who is neither licensee nor a

holder of authority;

3. Illegal recruitment committed in large scale; and

4. Illegal recruitment committed by a syndicate.

Simple Illegal Recruitment

is committed where a person

a) undertakes any recruitment activity defined under Article 13(b) orany prohibited practice enumerated under Article 34 and 38 of the Labor

Code

b) does not have a license or authority to lawfully engage in the

recruitment and placement of workers.

Illegal Recruitment in a Large Scale


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Aside from the two elements enumerated above, a third element, that is theoffense is committed against three or more persons, individually oras a group, creates illegal recruitment in a large scale.

Illegal Recruitment by a Syndicate

Illegal recruitment is deemed committed by a syndicate if carried out

by a group of three (3) or more persons conspiring or confederating with one

another. It is deemed committed in large scale if committed against three

(3) or more persons individually or as a group.

When is Illegal Recruitment considered as economicsabotage?

Article 38(b) of the Labor Code, as amended by PD No. 2018, provides that

illegal recruitment shall be considered an offense involving economic

sabotage if any of the following qualifying circumstances exists:

a) when illegal recruitment is committed by a syndicate

b) when illegal recruitment is committed in a large scale, example

when it is committed against three or more persons individually or as a group

May a person convicted for illegal recruitment may alsobe convicted for estafa?

A person convicted for illegal recruitment may also be convicted for

the crime of estafa. The principal reason for this is that the former offense is

malum prohibitum where the criminal intent of the accused is notnecessary for conviction, while estafa is malum in se where criminal intentof the accused is an additional element for conviction. (People vs. ElvisSanchez, People vs. Saulo)

Penalties

Under Article 39 of the Labor Code:

a. The penalty of life imprisonment and a fine of One Hundred

Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitment

constitutes economic sabotage as defined herein;


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b. Any licensee or holder of authority found violating or causing

another to violate any provision of this Title or its implementing rules

and regulations shall, upon conviction thereof, suffer the penalty of

imprisonment of not less than two years nor more than five years or a

fine of not less than P10,000 nor more than P50,000, or both such

imprisonment and fine, at the discretion of the court;

c. Any person who is neither a licensee nor a holder of authority under

this Title found violating any provision thereof or its implementing

rules and regulations shall, upon conviction thereof, suffer the penalty

of imprisonment of not less than four years nor more than eight years

or a fine of not less than P20,000 nor more than P100,000 or both such

imprisonment and fine, at the discretion of the court;

d. If the offender is a corporation, partnership, association or entity,

the penalty shall be imposed upon the officer or officers of the

corporation, partnership, association or entity responsible for violation;and if such officer is an alien, he shall, in addition to the penalties

herein prescribed, be deported without further proceedings;

e. In every case, conviction shall cause and carry the automatic

revocation of the license or authority and all the permits and privileges

granted to such person or entity under this Title, and the forfeiture of

the cash and surety bonds in favor of the Overseas Employment

Development Board or the National Seamen Board, as the case may

be, both of which are authorized to use the same exclusively to

promote their objectives.

Republic Act No. 8042, section 7. Migrant Workers and OverseasFilipinos Act of 1995 as amended by Republic Act No. 10022,Section 6.

a. Any persons found guilty of illegal recruitment shall suffer the

penalty of imprisonment of not less than twelve years (12) years and

one (1) day but not more than twenty (20) years and a fine or not less

than One million pesos (P1,000,000.00) nor more than Two million

pesos (P2,000,000.00);

b. The penalty of life imprisonment and a fine of not less than Two

million pesos (P2,000,000.00) nor more than Five million pesos

(P5,000,000.00) shall be imposed if illegal recruitment constitutes

economic sabotage as defined herein.


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Provided, however,That the maximum penalty shall be imposed if the

person illegally recruited is less than eighteen (18) years of age or

committed by a non-licensee or non-holder of authority.

c. Any person found guilty of any of the prohibited acts shall suffer the

penalty of imprisonment of not less than six (6) years and one (1) daybut not more than twelve (12) years and a fine of not less than Five

hundred thousand pesos (P500,000.00) nor more than One million

pesos (P1,000,000.00).

If the offender is an alien, he or she shall, in addition to the penalties

herein prescribed, be deported without further proceedings.

In every case, conviction shall cause and carry the automatic

revocation of the license or registration of the recruitment/manning

agency, lending institutions, training school or medical clinic.

Are travel agencies and sales agencies of airlinecompanies allowed to recruit workers?

Travel agencies and sales agencies of airline companies are prohibited from

engaging in the business of recruitment and placement of workers for

overseas employment whether for profit or not.

What is the citizenship requirement for persons,

corporations, partnerships or entities to participate in therecruitment and placement of workers?

Only Filipino citizens or corporations, partnership or entities at least

seventy-five percent (75%) of the authorized and voting capital stock

of which is owned and controlled by Filipino citizens shall be permitted

to participate in the recruitment and placement of workers, locally or

overseas.

Are government officials and employees allowed to recruit workers for

overseas employment?

It shall be unlawful for any official or employee of the Department of

Labor and Employment, the Philippine Overseas Employment

Administration (POEA), or the Overseas Workers Welfare

Administration (OWWA), or the Department of Foreign Affairs, or other

government agencies involved in the implementation of this Act, or

their relatives within the fourth civil degree of consanguinity or affinity,

to engage, directly or indirectly, in the business of recruiting migrant


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workers as defined in this Act. The penalties provided in the

immediately preceding paragraph shall be imposed upon them.

Cases

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. Elvis Sanchez, accused-appellant.

[G.R. No. 122508. June 26, 1998]

NATURE: An appeal from the Decision of RTC Branch 6, Baguio City dated 24July 1995 finding appellant Elvis Sanchez guilty beyond reasonable doubt ofthe crimes of illegal recruitment in large scale and three (3) counts of estafaand sentencing him accordingly.

FACTS:

Accused-appellant was charged with violation of Article 38(b) of PresidentialDecree No. 442 (Labor Code), as amended, for illegal recruitment in largescale and the corresponding five (5) cases of Estafa on 25 November 1993under informations which, except for the names of the complainants and theamounts involved, substantially contained similar allegations after hepromised employment or job placement in Taiwan to Alice G. Kimay, VeronicaFilog, Aaron John Acena, Nancy Fesset and Jerry Akia.

Said complainants all paid accused-appellant a substantial amount in view ofsaid promise which never materialized.

ISSUE:

Whether or not an accused convicted of violation of Article 38(b) ofPresidential Decree No. 442 (Labor Code), as amended, for illegalrecruitment in large scale may still be convicted of Estafa under para1, Art 315 of the RPC.

HELD:

Yes. Article 13(b) of the Labor Code defines recruitment and placement asany act of canvassing, enlisting, contracting, transporting, utilizing,hiring or procuring workers, and includes referrals, contractservices, promising or advertising for employment, locally or abroad,whether for profit or not: Provided, That any person or entity which,in any manner, offers or promises for a fee employment to two ormore persons shall be deemed engaged in recruitment andplacement.

The essential elements then of the crime of illegal recruitment in large scaleare that:


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(1) the accused engages in acts of recruitment and placement ofworkers defined under Article 13(b) or in any prohibited activitiesunder Article 34 of the Labor Code;

(2) the accused has not complied with the guidelines issued by theSecretary of Labor and Employment, particularly with respect to the

securing of a license or an authority to recruit and deploy workers,either locally or overseas; and

(3) the accused commits the unlawful acts against three or morepersons, individually or as a group.

The series of acts done by appellant of promising complainants employmentabroad, instructing them to comply with the documentary requirementstherefor, requiring them to undergo tests such as the trade test undergoneby Jerry Akia, using airline procedures for checking reservations anddemanding the payment of fees for his services, have created animpression upon complainants that he is capable of providing them

with work abroad. It is not disputed that appellant has had no licenseor authority to engage in job recruitment. A license is that which isissued by the Department of Labor and Employment ("DOLE") authorizing aperson or entity to operate a private employment agency, while an authorityis that issued by the DOLE entitling a person or association to so engage inrecruitment and placement activities as a private recruitment agency. It isthe lack of the necessary license or authority that renders therecruitment activity unlawful or criminal. Appellant is neither licensednor authorized to recruit workers in Baguio City or any part of the Region foroverseas work per the uncontroverted certification of the POEA to thateffect. More than three complainants have come out to denounceappellants illegal venture.

Conviction for the crime of illegal recruitment under the Labor Code does notpreclude punishment under other statutes if some other crimes or feloniesare committed in the process. Thus, a person convicted for illegal recruitmentmay also be convicted for the crime of estafa. The principal reason for this isthat the former offense is malum prohibitum where the criminal intent of theaccused is not necessary for conviction, while estafa is malum in se wherethe criminal intent of the accused is an additional element for conviction.

The elements of estafa in general are:

(1) that the accused has defrauded another by abuse of confidence orby deceit, and

(2) that damage or prejudice capable of pecuniary estimation is causedto the offended party or third person.

These elements are present in the case at bench - (a) appellant has deceivedcomplainants into believing that he is capable of providing them with workabroad, and (b) that, by reason of his false assurances, complainants have


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parted with money to their damage and prejudice - that thereby can renderappellant liable for estafa under paragraph 2(a), Article 315, of the RevisedPenal Code.

Decision of the RTC is affirmed.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DELIA SADIOSA yCABENTA, Accused-Appellant.

[G.R. No. 107084. May 15, 1998]

NATURE: An appeal from the Decision of RTC Branch 113, Pasay City.

FACTS:

In Bayombong, Nueva Ecija, the four complainants, Cely Navarro, MarcelaManzano, Erly Tuliao and Benilda Domingo were enticed by Arsenia Conseto apply for overseas employment informing them that she had a cousin who

could send them to Kuwait as domestic helpers. Apparently convinced theywent with the latter to Room 210, Diamond Building, Libertad St., PasayCity on February 5, 1992 where Arsenia Conse introduced the group toaccused-appellant Delia Sadiosa.

On that occasion, accused-appellant assured the four that she could dispatchthem to Kuwait and forthwith demanded P8,000.00 from each of them forprocessing fee and P1,000.00 for passport (P1,500.00 from complainant CelyNavarro).

The four did give accused-appellant the money demanded although ondifferent dates. The latter issued the corresponding receiptstherefor. Again,

she assured them that they could leave for Kuwait on different dates.However, not one of them was able to leave for Kuwait. When they asked forthe return of their money, accused-appellant refused and ignored theirdemand. Consequently, the four filed the complaint for illegal recruitmentagainst accused-appellant. Consequently an information charging accused-appellant with Illegal Recruitment was filed by the Prosecutor

In addition to the complainants testimonies, the prosecution presentedVirginia Santiago, a Senior Officer in the Licensing Branch and InspectionDivision of the Philippine Overseas Employment Administration (POEA) whotestified that accused-appellant was neither licensed nor authorized to recruitworkers for overseas employment.

Accused-appellant herself took the witness stand and testified in her defense.She resolutely denied having a hand in the illegal recruitment, claiming thatshe merely received the money on behalf of one Mrs. Ganura who owned therecruitment agency called Staff Organizers, Inc. in her capacity as an officerof the said recruitment agency. Said Mrs. Ganura was however neverpresented in the trial court.


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The trial court found accused-appellant guilty beyond reasonable doubtof the charge in the information and was sentenced to life imprisonmentand pay a fine of P100,000.00. The accused was likewise ordered toindemnify Benilda Sabado y Domingo, the sum of P8,000.00; Marcela

Tabernero y Manzano, the sum of P8,000.00; Erly Tuliao y Sabado, the sumof P8,000.00 and Cely Navarro y Manzano, the sum of P8,000.00.

ISSUE:

Whether or not an accused charged in an information of illegalrecruitment with recital of facts appearing to be Estafa under Art315 para 1 and 2 of the RPC be validly convicted of illegalrecruitment in large scale.

HELD:

It is well-settled in our jurisprudence that the information is sufficient where it

clearly states the designation of the offense by the statute and the acts oromissions complained of as constituting the offense.

However, there is no need to specify or refer to the particular section orsubsection of the statute that was violated by the accused. No law requiresthat in order that an accused may be convicted, the specific provisionpenalizing the act charged should be mentioned in the information.

What identifies the charge is the actual recital of the facts and notthat designated by the fiscal in the preamble thereof. It is not evennecessary for the protection of the substantial rights of the accused, nor theeffective preparation of his defense, that the accused be informed of the

technical name of the crime of which he stands charged. He must look tothe facts alleged.

In the instant case, the information filed against accused-appellantsufficiently shows that it is for the crime of illegal recruitment inlarge scale, as defined in Art. 38 (b) of the Labor Code and penalizedin Art. 39 of the same Code although it is designated as for illegalrecruitment only. Hence, to avoid misconception and misinterpretation of theinformation, the prosecutor involved in this case should have indicated in itscaption, the offense he had clearly alleged in its body, that the crime chargedwas for illegal recruitment in large scale.

However, such omission or lack of skill of the prosecutor who craftedthe information should not deprive the people of the rightto prosecute a crime with so grave a consequence against theeconomic life of the aggrieved parties. What is important is that he didallege in the information the facts sufficient to constitute theoffense of illegal recruitment in large scale. Under the Code, theessential elements of the crime of illegal recruitment in large scalewhich all are to be found in the information, are as follows:


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(1) The accused engages in the recruitment and placement ofworkers, as defined under Article 13 (b) or in any prohibited activitiesunder Article 34 of the Labor Code;

(2) Accused has not complied with the guidelines issued by theSecretary of Labor and Employment, particularly with respect to the

securing of a license or an authority to recruit and deploy workers,whether locally or overseas; and

(3) Accused commits the same against three (3) or more persons,individually or as a group.

While on its face the allegations in the information may constituteestafa, this Court agrees with the Solicitor General that it merelydescribes how accused-appellant was able to consummate the act ofillegal recruitment - through false and fraudulent representation bypretending that she was a duly-licensed recruiter who could secureemployment for complainants in Kuwait. These allegations in theinformation therefore do not render the information defective or

multiplicitous.It is apropos to underscore the firmly established jurisprudence that aperson who has committed illegal recruitment may be charged andconvicted separately of illegal recruitment under the Labor Code andestafa under Article 315 of the Revised Penal Code. The crime of illegalrecruitment is malum prohibitum where the criminal intent of the accused isnot necessary for conviction, while estafa is malum in se where the criminalintent of the accused is necessary for conviction.

In other words, a person convicted under the Labor Code may beconvicted of offenses punishable by other laws.

In the case at bar, accused-appellant could have been validly chargedseparately with Estafa under the same set of facts in the illegalrecruitment case, but she was fortunate enough not to have been socharged. Nevertheless, there is no doubt from a reading of the information,that it accurately and clearly avers all of the ingredients that constitute illegalrecruitment in large scale.

There are at least four kinds of illegal recruitment under the law (Arts 38and 39 of the Labor Code), these are:

Simple illegal recruitment committed by a licensee or holderof authority. The law penalizes such offender with imprisonmentof not less than two years nor more than five years or a fine of notless than P10,000 nor more than P50,000, or both suchimprisonment and fine.

Any person who is neither a licensee nor a holder ofauthority commits the second type of illegal recruitment. Thepenalty imposed for such offense is imprisonment of not less thanfour years nor more than eight years or a fine of not less


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than P20,000 nor more than P100,000 or both such imprisonmentand fine at the discretion of the court.

The third type of illegal recruitment refers to offenders whoeither commit the offense alone or with another person

against three or more persons individually or as a group.

A syndicate or a group of three or more persons conspiringand confederating with one another in carrying out the actcircumscribed by the law commits the fourth type of illegalrecruitment by the law.

For the third and fourth types of illegal recruitment the law prescribes thepenalty of life imprisonment and a fine of P100,000.

Decision of the RTC was affirmed.

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs. ENGINEERRODOLFO DIAZ, accused-appellant.

[G.R. No. 112175. July 26, 1996]

NATURE: An appeal from the decision dated September 2, 1993, of theRegional Trial Court, 11th Judicial Region, Branch 10, Davao City.

FACTS:

In June 1992 Mary Anne Navarro, Maria Theresa Fabricante and Maria ElenaRamirez were all enrolled at the Henichi Techno Exchange CulturalFoundation in Davao City, studying Niponggo. Their teacher was Mrs.Remedios Aplicador. One day Mrs. Aplicador told them that if they wanted togo and work abroad, particularly Brunei where they could earn a salary of

"$700.00 for four hours daily work," she would refer them to Mr. Paulo Limwho knew one Engr. Erwin Diaz who was recruiting applicants for Brunei.

Mr. Paulo Lim explained to them that he was not the one recruiting workersbut Engr. Diaz. Mr. Lim informed them that his children had already appliedwith Engr. Diaz and that the requirements were bio-data, passport, medicalcheckup, I.D. and income tax return, and P2,500.00 for processing of theirpapers. Mr. Lim offered to accompany them to Engr. Erwin Diaz at the office


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of the CIS. They asked Mr. Lim when he was available, and he said July 18(1992), Saturday morning.

The complainants met Engr. Diaz who was then being detained in the CISDetention Center in Davao City because of a case filed against him. Engr.Diaz confirmed that he was recruiting applicants for Brunei. The requirements

include four passport size pictures of each applicant, bio-data, income taxreturn, medical certificate, NBI clearance, passport, P2,500.00 for processingof the papers of each applicant, and P65,000.00 as placement fee, but onlyP20,000.00 for plane fare was to be paid by each applicant, the balance ofP45,000.00 was to be paid by means of salary deductions. The P2,500.00 forprocessing of their respective applications was to be paid at the house ofEngr. Diaz at 14 Aries Street, GSIS Heights, Davao City, with telephone no. 8-46-71.

The complainants complied with the requirements. However, upon inquiry bycomplainant Fabricante, the POEA verified that Engr. Diaz was not a licensedrecruiter. The three complainants withdrew their applications from Engr. Diaz

without paying his charges. The amounts they paid for processing fees wereall returned to them by Engr. Diaz. A case was subsequently filed againstaccused-appellant.

The trial court rendered a decision finding the appellant guilty of the crimescharged.

ISSUES:

1. Whether or not the lower court erred in finding that theaccused not only confined himself to facilitating the passport

and medical examination of the complainants but alsopromised them employment abroad.

2. Whether or not the lower court erred in not finding that theaccused was merely a facilitator of travel documents and notan illegal recruiter.

3. Whether or not the lower court erred in convicting theaccused of the crime charged.

RULING:

The issues being intertwined shall be discussed together.

The crime of illegal recruitment, as defined under Articles 38 (a) in relation toArticles 13 (b) and 34 and penalized under Article 39 of the Labor Code, asamended by Presidential Decree 1920 and Presidential Decree 2018, is any


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recruitment activity, including the prohibited practices enumerated underArticle 34, undertaken by a non-licensee or non-holder of authority.

Article 13 (b) of the Labor Code, provides for the statutory definition of"recruitment and placement, as follows:

"Recruitment and placement refers to any act of canvassing, enlisting,contracting, transporting, utilizing, hiring or procuring workers, and includesreferrals, contract services, promising or advertising for employment, locallyor abroad, whether for profit or not; Provided that any person or entity whichin any manner offers or promises for a fee employment to two or morepersons shall be deemed engaged in recruitment and placement."

In People v. Panis, the SC made the pronouncement that any of the actsmentioned in Article 13(b) will constitute recruitment and placement even ifonly one prospective worker is involved. The number of persons dealt with isnot an essential ingredient of the act of recruitment and placement.

Article 38(a) clearly shows that illegal recruitment is an offense which isessentially committed by a non-licensee or non-holder of authority.

A non-licensee or non-holder of authority means any person, corporation orentity which has not been issued a valid license or authority to engage inrecruitment and placement by the Secretary of Labor, or whose license orauthority has been suspended, revoked or cancelled by the POEA or theSecretary.

Moreover, recruitment and placement activities of agents or representativeswhose appointments by a licensee or holder of authority were not previouslyauthorized by the POEA shall likewise constitute illegal recruitment.

The elements of the crime of illegal recruitment in large scale, which areundoubtedly present in this case are:

1] The offender is a non-licensee or non-holder of authority to engagein recruitment and placement activity,

2] The offender undertakes recruitment and placement activity definedunder Article 13(b), or any prohibited practices enumerated underArticle 34, and

3] Illegal recruitment is committed against three or more personsindividually or as a group.[10]

As can be ascertained after a thorough reading of the records, appellant Diazwas neither a licensee nor a holder of authority to qualify him to lawfullyengage in recruitment and placement activity.

As to the third element of the crime, there were obviously three persons whowere victims of the appellant's nefarious act of large scale illegal recruitment.


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Relative to the question of whether or not appellant Diaz was engaged inrecruitment activity, it is clear from the testimonies of the three complainantsthat appellant undertook to recruit them.

In synthesis, considering the positive testimonies of the complainants againstthe negative bare denials of accused-appellant, no other conclusion could be

arrived at but to sustain the conviction of accused-appellant finding the latterguilty of large scale illegal recruitment beyond reasonable doubt.

IN VIEW OF THE FOREGOING PREMISES, the Decision appealed from datedSeptember 2, 1993 is hereby AFFIRMED in all respects, with costs againstaccused-appellant Rodolfo Diaz.

PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs. EDITHA SEORON YLIMORA, accused-appellant.

[G.R. No. 119160. January 30, 1997]

NATURE: An appeal from the decision Regional Trial Court of Pasay Citydated October 25, 1994 convicting appellant Editha Seoron of the crimes ofillegal recruitment in large scale and three (3) counts of estafa.

FACTS:

Sometime in October 1991, Cesar Virtucio met appellant at accused AquilinoIlano's house in Malibay, Pasay City, when he (Virtucio) and other applicantsapplied for jobs abroad. During the meeting at Ilano's residence, Virtucio andhis companions were given job application forms which they filled up as told.

Thereafter, Virtucio paid Ilano, in the presence of appellant, the amount ofP20,000.00 as placement fee. After paying the placement fee, Virtucio andhis companions were told by appellant to follow-up their applications at heroffice or at Padre Faura, Manila. Appellant failed to send Virtucio and hiscompanions abroad, hence, he (Virtucio), together with applicants RoniloBueno and Greg Corsega, filed a complaint for illegal Recruitment and Estafaagainst appellant, a certain John Doe and Aquilino Ilano before the NationalBureau of Investigation.

Appellant Editha L. Seoron and her co-accused Aquilino Ilano and one JohnDoe, both at large, were charged in four separate informations with onecount of illegal recruitment in large scale and three counts of estafa before

the Regional Trial Court of Pasay City. When arraigned, appellant pleaded notguilty. Trial thereafter ensued. On October 25, 1994, the trial court rendereda decision convicting appellant as charged and sentencing her accordingly.

ISSUE:


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Whether or not the lower court erred in not finding that theprosecution failed to prove the guilt of the accused-appellant EdithaSeoron beyond reasonable doubt in the illegal recruitment, (largescale) case.

RULING:

In essence, the centerpiece of appellant's defense dwells on the allegedinsufficiency of the prosecution's evidence to prove her guilt as "[t]here isnothing on record . . . which says that placement fees received by AquilinoIlano from the three (3) private complainants was turned over to [her]".Appellant asserts that she never issued or signed any receipts and that as amatter of fact "[t]he receipts of payment of alleged placement fees werereceived and receipted by accused Aquilino Ilano. Thus, appellant concludesthat the prosecution failed to discharge its burden of proof therebynecessitating her acquittal.

The SC was not persuaded.

Illegal recruitment is defined under Article 38 (a) of the Labor Code, asamended, as "(a)ny recruitment activities, including the prohibited practicesenumerated under Article 34 of this Code, to be undertaken by non-licenseesor non-holders of authority." Article 13 (b) of the Code defines "recruitmentand placement" as

[A]ny act of canvassing, enlisting, contracting, transporting, utilizing,hiring or procuring workers, and includes referrals, contract services,promising or advertising for employment, locally or abroad, whetherfor profit or not: Provided, that any person or entity which in any

manner, offers or promises for a fee employment to two or morepersons shall be deemed engaged in recruitment and placement.

To prove illegal recruitment, two elements must be shown namely: (1) theperson charged with the crime must have undertaken recruitment activities,or any of the activities enumerated in Article 34 of the Labor Code, asamended; and (2) said person does not have a license or authority to do so.Contrary to appellant's mistaken notion, therefore, it is not the issuance orsigning of receipts for the placement fees that makes a case for illegalrecruitment, but rather the undertaking of recruitment activities without thenecessary license or authority. And in this case, evidence on record belieappellant's assertion that she did not engage in any recruitment activity and

that the fees paid by the applicants were not turned over to her possessionas shown by the following testimony of private complainant Virtucio.

Appellant made a distinct impression that she had the ability to sendapplicants for work abroad. She, however, does not possess any license orauthority to recruit which fact was confirmed by the duly authenticatedcertification issued by the Manager of the Licensing Branch of the POEA, andby the testimony of Ms. Socorro Landas representing the Licensing Division ofthe Philippine Overseas Employment Administration (POEA). It is the lack of


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necessary license or authority that renders the recruitment activity, as in thiscase, unlawful or criminal.

Appellant's residual arguments that she was just an accommodation maker inthe issuance of the check and that private complainants failed to notify herafter the check bounced do not merit serious consideration. It has to be

emphasized that appellant is not being prosecuted for violation of the anti-bouncing check law where the foregoing contentions may have an impact,but for illegal recruitment which the prosecution was able to establish beyondreasonable doubt.

WHEREFORE, the trial court's decision is hereby AFFIRMED.

PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs. NIMFA REMULLO,accused-appellant.

[G.R. Nos. 124443-46 June 6, 2002]

NATURE: An appeal from a decision of the Regional Trial Court of MakatiCity, Branch 132.

FACTS:

Private complainants JENELYN QUINSAAT, ROSARIO CADACIO, and HONORINAMEJIA averred that they went to appellants house sometime in March 1993,where appellant told them she was recruiting factory workers for Malaysia.Appellant told them to fill up application forms and to go to the office of

Jamila and Co., the recruitment agency where appellant worked. Appellantalso required each applicant to submit a passport, pictures, and clearance

from the National Bureau of Investigation (NBI); and then to undergo amedical examination. Appellant told them the placement fee was P15,000 foreach applicant, which private complainants gave her. Appellant did not issuereceipts for any of the payments.

At the Jamila office, private complainants met a certain Steven Mah, thealleged broker from the company in Malaysia that was interested in hiring thewomen. Mah told them they were fit to work.

Private complainants were supposed to leave for Malaysia on June 6, 1993.On May 28, 1993, private complainant Quinsaat testified that she and theothers met with appellant at the Philippine General Hospital where appellantshowed them their plane tickets. Appellant also told them to fill up departure

cards by checking the word "holiday" thereon.

At the airport on June 6, 1993, an immigration officer told privatecomplainants they lacked a requirement imposed by the Philippine OverseasEmployment Administration (POEA). Their passports were cancelled and theirboarding passes marked "offloaded".

Private complainant Mejia testified that appellant told them they were notable to leave because their visas were for tourists only. Appellant told private


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complainants they would be able to leave on June 20, 1993 but this, too, didnot push through.

Hence, appellant Remullo was charged with Illegal Recruitment in Large Scaleand Estafa.

The trial court found appellant guilty of the charges against her.

ISSUE:

Whether or not appellant Nimfa Remullo is guilty of IllegalRecruitment in Large Scale.

RULING:

Yes. In Criminal Case No. 95-653, appellant was charged with illegalrecruitment in large scale. For such a charge to prosper, the followingelements must concur: (1) the accused was engaged in recruitment activitydefined under Article 13 (b), or any prohibited practice under Article 34 of theLabor Code; (2) he or she lacks the requisite license or authority to lawfullyengage in the recruitment and placement of workers; and (3) he or shecommitted such acts against three or more persons, individually or as agroup.

Article 13 (b) of the Labor Code provides:

ART. 13. Definitions. -- xxx(b) "Recruitment and placement" refers toany act of canvassing, enlisting, contracting, transporting, utilizing,

hiring or procuring workers, and includes referrals, contact services,promising or advertising for employment, locally or abroad, whetherfor profit or not: Provided, That any person or entity which, in anymanner, offers or promises for a fee employment to two or morepersons shall be deemed engaged in recruitment and placement.

The Supreme Court was convinced that private complainants, the mainwitnesses for the prosecution, were enticed by appellant to apply for jobsabroad. The three private complainants filled up application forms atappellants house, and each paid appellant the amount of P15,000 asplacement fee. However, she acted without license or lawful authority toconduct recruitment of workers for overseas placement. The POEAs licensing

branch issued a certification stating that appellant, in her personal capacity,was not authorized to engage in recruitment activities. Evelyn Landrito,general manager of the placement agency where appellant used to work,denied that the scope of appellants work included recruiting workers andreceiving placement fees. Such lack of authority to recruit is also apparentfrom a reading of the job description of a marketing consultant, the post thatappellant occupied at Jamila and Co.


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WHEREFORE, the appealed decision of the Regional Trial Court, Makati City,Branch 132, is hereby AFFIRMED.

PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs. ENRIQUE TAGUBA

AND MIRAFE TAGUBA, accused-appellants.[G.R. No. 95207-17. January 10, 1994]

NATURE: An appeal from a Decision of the Regional Trial Court of CaloocanCity, Branch 121.

FACTS:

The complainants, namely, Jesus Garcia, Gilbert Fabrigas, Josefina Sarrion,Myrna Roxas, Elena Santiago, Federico Sagurit, Manuel Aquiban, VioletaPorte, Renelito Cerbito, Danilo Pacheco, narrated almost identical versions ofthe deception practiced on them by the accused.

These witnesses testified that appellants approached them on separateoccasions and assured them that upon their payment of a specified sum ofmoney they would be sent to Korror, Palau, to work variously as awaiter, fisherman, master cutter, dressmaker, farmer, laborer, masoncarpenter or macho dancer.

The consideration for their recruitment ranged from P2,200.00 to P20,000.00while the promised monthly wages ranged from $300.00 top $500.00.

The required payments were made by them from loans they had contracted

or from the proceeds of the sale of their properties. However, no overseasemployment materialized. Only Gilbert Fabrigas and Norman Sarrion (the sonof Josefina Sarrion) were able to reach Korror but after three months, duringwhich they were not given any work, they were deported to Manila forexpired visas. The rest of the complainants were never even able to leavethe Philippines.

Enrique Taguba and Mirafe Taguba were both charged with eight counts ofillegal recruitment and three counts of estafa in separate informations.

After trial, Judge Adoracion C. Angeles of the Regional Trial Court in CaloocanCity declared them guilty of all the charges in a decision dated June 4, 1990.

The Solicitor General maintains in the appellee's brief that it was incumbenton the accused to prove that they were licensed to recruit workers,conformably to the well-settled rule that any party who asserts theaffirmative of an issue has the burden of presenting evidence required toobtain a favorable judgment. 19 He agrees, however, that PD 2018 isinapplicable and that the appellants can only be held guilty of eight counts ofillegal recruitment and penalized in accordance with Sec. 39 (c) of the LaborCode.


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ISSUES:

1. Whether or not the prosecution failed to prove that appellantswere not holders of licenses to engage in the recruitment and

placement of workers abroad.

2. Whether or not appellants can be convicted of illegalrecruitment in large scale.

RULING:

For the first issue, the SC ruled in the affirmative. The record shows that theprosecution indeed failed to establish that the appellants had not been issued

licenses to recruit for overseas employment. It had moved to present CeciliaE. Curso, Chief of the Licensing and Evaluation Division of the PhilippineOverseas Employment Agency, so she could testify that the accused were notlicensed recruiters, but this was never done.

Rule 131 Sec. 2, of the Rules of Court provides:

Sec. 2. Burden of proof in criminal cases. In criminal cases theburden of proof as to the offense charged lies on the prosecution. Anegative fact alleged by the prosecution need not be proved unless it isan essential ingredient of the offense.

Non-possession of a license to recruit is an essential ingredient of the crime

of illegal recruiting. As it is an indispensable requisite for the conviction of thepretended recruiter, the burden of establishing this element is upon theprosecution. In the case before us, the prosecution cannot deny its failure toshow that no license had indeed been issued to either of the appellees by thePhilippine Overseas Employment Administration.

This would have been a fatal omission under ordinary circumstances.Fortunately for the prosecution, however, this flaw was repaired by appellantEnrique Taguba himself when he testified.

On the second issue, the SC ruled in the negative. The Court agrees with theSolicitor General that the appellants cannot be convicted of illegal

recruitment on a large scale because only two of the complainants, JesusGarcia and Elena Santiago, categorically testified that their recruitment cameafter February 10, 1986. This was the date when P.D. 2018, the law definingand penalizing illegal recruitment in a large scale, took effect.

P.D. 2018 has amended Articles 38 and 39 of the Labor Code byproviding inter alia as follows:


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Art. 38. Illegal Recruitment. . . .

(b) Illegal recruitment when committed by a syndicate or in alarge scale shall be considered an offense involving economicsabotage and shall be penalized in accordance with Article 39hereof.

Illegal recruitment is deemed committed by a syndicate ifcarried out by a group of three (3) or more persons conspiringand/or confederating with one another in carrying out anyunlawful or illegal transaction, enterprise or scheme definedunder this first paragraph hereof. Illegal recruitment is deemedcommitted in large scale if committed against three (3) or morepersons individually or as a group.

xxx xxx xxx

(d) Art. 39. Penalties. (a) The penalty of the imprisonment anda fine of One Hundred Thousand Pesos (P100,000) shall beimposed if illegal recruitment constitutes economic sabotage asdefined herein;

xxx xxx xxx

(c) Any person who is neither a licensee nor a holder of authorityunder this Title found violating any provision thereof or itsimplementing rules and regulations shall, upon convictionthereof, suffer the penalty of imprisonment of not less than fouryears nor more than eight years or a fine of not less than

P20,000 nor more than P100,00 or both such imprisonment andfine, at the discretion of the Court.

P.D. 2018 cannot apply to the appellants retroactively as it would be an expost facto law to them. A law is ex post facto if it refers to a criminal act,punishes an act which was innocent when done, and retroacts to thedisadvantage of the accused. Prior to the said date, recruiting on a largescale was not yet punished with the penalty imposed in the said decree.

WHEREFORE, the appealed decision is AFFIRMED with modifications.

Documents

Recruitment and Placement (G3)